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March 10, 2009

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Dear HR Guy:

When calling an applicant's former employer to check if the person is eligible for re-hire, what can the former employer legally tell me? I was told that it is either is a simple "yes" or "no" answer and that the former employer cannot go into details (i.e. to say that a former employee was fired for theft). Any feedback would be appreciated as I have a bet with a co-worker riding on this!

Jim ~

Dear Jim:

Sorry, dude - you lose.

There are no hard and fast rules for verifying employee information. Each company has its own policy. Some companies will only verify dates of employment. Other companies will go so far as to let you talk to the former employee's supervisor to get an actual recommendation.

The trend is certainly leaning towards companies releasing as little information as possible on former employees out of fear of being sued. While technically so long as you act in good faith and are truthful in your statements about a former employee you are okay, statements about quality of work and personality are subjective and all too often lead to a disparagement lawsuit from the former employee. This is most unfortunate, because employers that choose not to comment about former employees also can't provide glowing references for the candidates that deserve them.

In recognition of the problem associated with employment background checks, more and more states are enacting legislation that makes requires a former employee to prove intentional malice in order to sue for disparagement. Hopefully this will encourage employers to be more informative when it comes to reference checks on former employees. For more information about what's fair game when it comes to background checks, contact your state's Department of Labor.

Hope you didn't bet the farm, Jim.

HR Guy

Click here to discuss reference checking on the EmployerVault message boards!

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Filed Under: Workplace Issues

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